Tag Archives: Skagit County Criminal Defense Attorney

Search of Rental Cars

Bellingham Defense Attorney, Drug Offenses, Federal Crimes & Prosecutions, Fourth Amendment, Search and Seizure, Skagit County Criminal Defense, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Image result for rental car

In Byrd v. United States, the United States Supreme Court held that while a car thief does not have right to privacy in a stolen car no matter the degree of possession and control, the driver of a rental car can challenge a warrantless search of the vehicle even if the driver is not listed as an authorized driver on the rental agreement.

BACKGROUND FACTS

Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility. Her signed agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. Reed listed no additional drivers on the form, but she gave the keys to Byrd upon leaving the building. He stored personal belongings in the rental car’s trunk and then left alone for Pittsburgh, Pennsylvania.

Pennsylvania State Troopers stopped Byrd for a traffic infraction. They learned that the car was rented, that Byrd was not listed as an authorized driver, and that Byrd had prior drug and weapons convictions. Byrd also stated he had a marijuana cigarette in the car.

The troopers proceeded to search the car, discovering body armor and 49 bricks of heroin in the trunk. The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U. S. C. §841(a)(1) and possession of body armor by a prohibited person in violation of 18 U. S. C. §931(a)(1). The District Court denied Byrd’s motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car.

COURT’S ANALYSIS AND CONCLUSIONS

In a unanimous decision favoring Byrd, Justice Anthony Kennedy wrote, “The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.”

The Court added that there can be numerous reasons why a driver unlisted on a rental contract may need to drive the rental car, and that the government had not shown that whether the simple breach of the rental contract would affect the expectation of privacy.

Also, the Court reasoned that one of the main rights attaching to property is the right to exclude others. Also, one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude. “This general property-based concept guides resolution of the instant case,” said Justice Kennedy:

“The Government’s contention that drivers who are not listed on rental agreements always lack an expectation of privacy in the car rests on too restrictive a view of the Fourth Amendment’s protections. But Byrd’s proposal that a rental car’s sole occupant always has an expectation of privacy based on mere possession and control would, without qualification, include thieves or others who have no reasonable expectation of privacy.”

The Court rejected the Government’s arguments that an unauthorized driver has no privacy interest in the vehicle. Byrd, in contrast, was the rental car’s driver and sole occupant. His situation is similar to the defendant in Jones v. United States, who had a reasonable expectation of privacy in his friend’s apartment because he had complete dominion and control over the apartment and could exclude others from it:

“The expectation of privacy that comes from lawful possession and control and the attendant right to exclude should not differ depending on whether a car is rented or owned by someone other than the person currently possessing it, much as it did not seem to matter whether the defendant’s friend in Jones owned or leased the apartment he permitted the defendant to use in his absence.”

The Court also rejected the Government’s argument that Byrd had no basis for claiming an expectation of privacy in the rental car because his driving of that car was so serious a breach of Reed’s rental agreement that the rental company would have voided the contract once he took the wheel. “But the contract says only that the violation may result in coverage, not the agreement, being void and the renter’s being fully responsible for any loss or damage,” said Justice Kennedy. “And the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car.”

Kennedy’s decision concluded that there remained two issues which the Supreme Court remanded back to the lower courts: (1) whether Officer Long had probable cause to search the car in the first place, and (2) whether Byrd intentionally used a third party as a straw man in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime.

With that, the Supreme Court vacated Byrd’s conviction and remanded back to the Third Circuit Court of Appeals.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Inventory Searches of Cars

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Federal Crimes & Prosecutions, Inventory Searches, Pretext, Probable Cause, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Image result for surrounded by police cars

In United States v. Johnson, the Ninth Circuit Court of Appeals held that a suspicionless inventory search is only proper when it is performed to secure and to protect an arrestee’s property and to protect the police department against fraudulent claims of lost or stolen property. Evidence removed from the defendant’s car could not be justified under the inventory-search doctrine where the officers explicitly admitted that they seized the items in an effort to search for evidence of criminal activity.

BACKGROUND FACTS

On April 10, 2014, Multnomah County Sheriff’s deputies located Mr. Johnson—who had an outstanding warrant for his arrest based on a post-prison supervision violation—at the Clackamas Inn, just south of Portland, Oregon. The deputies followed Johnson to a residence in the nearby town of Gladstone and called Portland Police Bureau (PPB) Officers Corona and Ables for assistance in arresting him.

The officers did not approach Johnson at the residence, but instead waited outside. After about 20 minutes, Johnson left, and again the officers followed him. At a nearby intersection, the officers finally stopped Johnson by loosely boxing in his car; one car approached Johnson from behind while another approached from the front, effectively blocking Johnson’s ability to drive away. The cars all came to a stop within a few feet of each other, and although there was enough room for Johnson to pull his car to the side of the road, he instead parked in the lane of traffic, disrupting the flow of passing cars. When approached by the officers, Johnson could not provide proof of insurance for the car, which he was borrowing, nor could he give anything other than the first name of the car’s owner. Johnson did not know how the police could contact the owner.

The officers arrested Johnson on the outstanding warrant. After the arrest, the officers searched Johnson and found a folding knife in his front pocket, $7,100 in cash in $20 and $100 denominations in his rear pants pocket, and $150 in cash in his wallet. Johnson said that he had recently inherited the $7,100 and that he planned to purchase a car with it.

Because Johnson’s car was blocking traffic and because Johnson could not provide contact information for the car’s owner, the officers ordered it to be towed and impounded, pursuant to PPB policy. Prior to the tow, the officers conducted an inventory search of the car, again pursuant to local policy. From the interior of the car, the officers collected a combination stun gun and flashlight, a glass pipe with white residue, a jacket, and two cellphones. From the trunk, the officers collected a backpack and a duffel bag. Officer Corona testified that, when he moved the backpack and duffel in order to search for other items in the trunk, the bags felt heavy and the backpack made a metallic “clink” when he set it down on the pavement. PPB stored each of the seized pieces of property in the County property and evidence warehouse, and the $7,100 was taken into custody by the County Sherriff’s Office. Officer Corona recorded each item seized on an accompanying arrest report; the Sheriff’s Office prepared a property receipt for the $7,100 in seized cash.

A week later, Officer Corona submitted an affidavit to secure a warrant to search the seized backpack, duffel bag, and cell phones. The affidavit referred to a 2009 police report (which Corona read after arresting Johnson) that stated Johnson had previously been found with cash, weapons, and drugs in a safe concealed in his vehicle. Officer Corona’s affidavit stated that, based on the circumstances of Johnson’s recent arrest, he had probable cause to believe the bags seized from the trunk would contain similar lockboxes, and that the phones would contain evidence of drug dealing.

A warrant was duly signed by a local magistrate judge, and a search of the backpack revealed a small safe containing two bags of methamphetamine, drug-packaging materials, syringes, and a digital scale. The duffel bag contained Johnson’s personal items, and one of the cellphones contained text messages regarding drug trafficking.

Johnson was indicted on one charge of possession with intent to distribute methamphetamine in an amount of 50 grams or more, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii).

Before trial, Johnson moved to suppress the evidence found in the car and on his person at arrest. Primarily, Johnson challenged the evidence supporting the warrant to search the backpack and cellphones, arguing that it did not amount to probable cause. Johnson also argued that the officers unlawfully manipulated the bags they seized from the car in order to get a sense for what they might contain and that the inventory search of his car was invalid.

The federal district court denied the motion, concluding that there was probable cause to stop and to arrest Johnson on the outstanding warrant, the officers validly impounded Johnson’s car because it was blocking traffic, the subsequent inventory of the vehicle was “lawful because PPB mandates officers to conduct an inventory of impounded vehicles,” and the search warrant was supported by probable cause.

At trial, the government introduced the evidence found in Johnson’s car and on his person, with a particular focus on the items of evidence found in the backpack, the messages from the cellphone, and the $7,100 in cash. The jury found him guilty.

Approximately four months later, Johnson filed a motion for new trial on the basis of, among other things, two pieces of supposedly newly discovered evidence: (1) evidence showing that Johnson had indeed recently received an inheritance; and (2) a receipt from the private company that towed and impounded his car, which stated that they found various additional items of property in the car that were not listed in Officer Corona’s arrest report. After a hearing, the district court denied the motion for a new trial upon the conclusion that none of the supposedly new evidence would have resulted in a likely acquittal.

Johnson was sentenced to 188 months in prison, and he now timely appeals.

LEGAL ISSUE

Whether the trial court erred in failing to suppress evidence that was seized by City of Portland police officers during their inventory search of a criminal defendant and the car he was driving at the time of his arrest.

COURT’S ANALYSIS & CONCLUSIONS

Johnson argued that the officers’ inspection of his car exceeded the constitutionally permissible bounds for an inventory search.

The Ninth Circuit reasoned that as an exception to the warrant requirement of the Fourth Amendment to the United States Constitution, police may, without a warrant, impound and search a motor vehicle so long as they do so in conformance with the standardized procedures of the local police department and in furtherance of a community caretaking purpose, such as promoting public safety or the efficient flow of traffic. The purpose of such a search is to produce an inventory of the items in the car, in order to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. Florida v. Wells, 495 U.S. 1, 4 (1990). Thus, the purpose of the search must be non-investigative; it must be conducted on the basis of something other than suspicion of evidence of criminal activity. The search cannot be “a ruse for a general rummaging in order to discover incriminating evidence.” Wells, 495 U.S. at 4.

The Court of Appeals further reasoned that an administrative search may be invalid where the officer’s subjective purpose was to find evidence of crime. However, the mere presence of a criminal investigatory motive or a dual motive—one valid, and one impermissible— does not render an administrative stop or search invalid. Instead, the issue is whether the challenged search or seizure would have occurred in the absence of an impermissible reason.

“We thus must determine whether Johnson has produced evidence that demonstrates the officers would not have searched and seized items from the car he was driving but for an impermissible motive,” said the Court of Appeals.

“Under our circuit’s law, a suspicionless inventory search does not permit officers to search or to seize items simply because they believe the items might be of evidentiary value,” said the Court.  It reasoned that as explained above, the purpose of such a search must be unrelated to criminal investigation; it must function instead to secure and to protect an arrestee’s property, and likewise to protect the police department against fraudulent claims of lost or stolen property.

“Thus, the officers’ statements directly admitting that they searched and seized items from Johnson’s car specifically to gather evidence of a suspected crime are sufficient to conclude that the warrantless search of the car was unreasonable,” said the Court, citing Orozco; a case where the Ninth Circuit found pretext where the police officers admitted that their subjective purpose was to find evidence of crime.

The Ninth Circuit concluded that the officers’ search and seizure of such evidence cannot be justified under the inventory-search doctrine:

“In the face of such evidence, it is clear to us that the officers’ decision to seize the money, bags, and cellphones from Johnson and his car would not have occurred without an improper motivation to gather evidence of crime.”

Furthermore, the Ninth Circuit reasoned that because the government has not offered any justification for the seizure of such property other than the inventory-search doctrine, the district court erred in denying Johnson’s motion to suppress. Therefore, evidence gathered from Johnson and his vehicle was inadmissible.

With that, the Ninth Circuit ruled that the federal district court’s denial of Johnson’s motion to suppress the evidence found on his person and in the car he was driving at the time of his arrest is reversed, his conviction and sentence are vacated, and the case is remanded back to the district court for further proceedings.

My opinion? Good decision. Clearly, the search conducted by police officers in this case went beyond the scope of a lawful inventory search. Please contact my office if you, a friend of family member face criminal charges involving a questionable search. The evidence might be suppressible under a well-argued pretrial motion.

Expert Witnesses & Meth

Bellingham Defense Attorney, Constitutional Rights, ER 702, Evidence, Expert Testimony, felony, Homicide & Manslaughter, Methamphetamine, Self-Defense, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for methamphetamine aggression

In State v. Richmond, the WA Court of Appeals held that a defense expert witness’s proposed testimony regarding the effects of methamphetamine was properly barred at trial because the expert never met or examined the victim and increased aggression is only one possible effect of methamphetamine ingestion.

BACKGROUND FACTS

Dennis Higginbotham went to Joseph Richmond’s property with two other individuals, Veronica Dresp and Lonnie Zackuse. Ms. Dresp was Mr. Richmond’s estranged girlfriend. Ms. Dresp had asked Mr. Higginbotham and Ms. Zackuse to accompany her to Mr. Richmond’s property so that she could remove some of her belongings.

A verbal argument ensued between Mr. Richmond and Mr. Higginbotham. After the verbal argument, Mr. Richmond went into his house. His return to the house was a relief. It appeared the hostility had come to an end.

Unfortunately, this turned out not to be true. Instead, Mr. Richmond ran out of his house, armed with a two-by-four piece of lumber that was nearly four feet in length. Mr. Richmond and Mr. Higginbotham then started exchanging more words. Mr. Richmond warned Mr. Higginbotham not to come any closer to him. When Mr. Higginbotham took a step forward, Mr. Richmond struck Mr. Higginbotham with the two-by-four. According to Ms. Dresp and Ms. Zackuse, Mr. Richmond held the two-by-four like a baseball bat and swung it at Mr. Higginbotham’s head. After he was hit, Mr. Higginbotham spun around and fell face first on the ground.

When emergency personnel arrived at the scene, it was determined Mr. Higginbotham had suffered severe head trauma. He was unconscious and eventually transported to
Harborview Medical Center in Seattle. He died shortly thereafter.

Mr. Richmond was charged with second degree murder.

Mr. Richmond lodged a self-defense theory against the State’s murder charges. In support of this theory, Mr. Richmond sought to introduce testimony from several experts. One of the experts was David Predmore. Mr. Predmore was offered to testify about the general effects of methamphetamine consumption on human behavior. According to the defense, this testimony was relevant because high levels of methamphetamine had been found in Mr. Higginbotham’s system at the time of his death.

Although Mr. Richmond was not aware of Mr. Higginbotham’s methamphetamine consumption at the time of the assault, the defense theorized that Mr. Predmore’s testimony was relevant to corroborate Mr. Richmond’s claim that Mr. Higginbotham was behaving aggressively the night of the attack. However, the trial court excluded Mr. Predmore’s testimony as speculative and irrelevant. The jury convicted Mr. Richmond of second degree murder. He appealed.

ISSUE

On appeal, the issue was whether the trial court violated Mr. Richmond’s constitutional right to present a defense by excluding his expert’s testimony.

COURT’S ANALYSIS & CONCLUSIONS

“Mr. Richmond argues the trial court violated his constitutional right to present a
defense by excluding expert testimony,” said the Court of Appeals. “We disagree.”

The Court of Appeals reasoned that Evidence Rule 702 governs the admissibility of expert testimony. “Under this rule, a witness may provide expert opinion testimony to the jury if (1) the witness is qualified as an expert, and (2) the witness’s testimony would help the trier of fact,” said the Court of Appeals.

“Expert testimony is helpful if it concerns matters beyond the common knowledge of the average layperson and does not mislead the jury. A proposed expert’s testimony is not helpful or relevant if it is based on speculation.”

Furthermore, the Court of Appeals reasoned that the trial court properly excluded Mr. Predmore’s proposed testimony regarding the effects of methamphetamine because it was not shown to be potentially helpful to the jury. “Mr. Predmore had never met or examined Mr. Higginbotham. He had no basis to assess how Mr. Higginbotham’s body may have processed methamphetamine,” said the Court of Appeals. It further reasoned that according to Mr. Predmore’s proposed testimony, methamphetamine can have a wide range of effects. Increased aggression is only one possibility. “It is therefore nothing but speculation to connect Mr. Higginbotham’s methamphetamine use with Mr. Richmond’s claim of victim aggression,” said the Court of Appeals. “The evidence was properly excluded, consistent with long standing case law.”

With that, the Court of Appeals upheld the conviction.

Please contact my office if you, a friend or family member are charged with a crime after responding in self-defense. Hiring competent and experienced counsel is the first step toward receiving a just resolution.

How to Delete Your DNA Data From Genetics Companies

Bellingham Defense Attorney, DNA, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Image result for dna data spit into

Wonderful article from reporter Erin Brodwin of Business Insider discusses how to delete your DNA data from genetics companies like 23andMe and Ancestry.

The recent arrest in one of California’s most infamous serial-killer cases was based in large part on a DNA sample submitted to a genetics website by a distant relative of the suspect.

Brodwin writes that, naturally, the news may have you concerned about the security of your own genetic material. You may be wondering how to delete it from genetic databases kept by popular genetics testing companies like 23andMe and Ancestry.

Those two databases were not used by investigators to track down Golden State Killer suspect Joseph James DeAngelo. Instead, investigators used a service called GEDmatch, which lets customers upload a raw DNA signature. Investigators created a profile for the suspect using DNA sourced from a long-stored crime scene sample, and found matches between DeAngelo’s crime scene DNA and the DNA of a distant family member.

In her article, Brodwin writes that 23andMe, Ancestry, and Helix (National Geographic’s genetics service) only accept saliva samples for genetics testing — an easy way of obtaining DNA. But a similar company called Family Tree DNA could likely accept hair or blood, according to Joe Fox, an administrator for one of the company’s surname projects.

Whichever way a company gets your DNA, privacy advocates say there’s cause for concern. Although genetic data is ostensibly anonymized, companies can and do sell your data to third parties like pharmaceutical companies. From there, it could find its way elsewhere, advocates say.

The core service provided by most commercial genetic tests is built on the extraction of your DNA from your spit — that’s how you get the results about your health and ancestry information.

Here’s how to delete your data from a few of these services.

Deleting DNA Test Results from 23andMe.

After registering your spit sample online with 23andMe, the company will ask if you’d like your saliva to be stored or discarded. But you are not asked the same question about your raw genetic data — the DNA extracted from your spit.

Based on the wording of a document called the “Biobanking Consent Document,” it’s a bit unclear what happens to that raw DNA once you decide to have the company either store or toss your spit.

Here’s the statement’s exact language:

“By choosing to have 23andMe store either your saliva sample or DNA extracted from your saliva, you are consenting to having 23andMe and its contractors access and analyze your stored sample, using the same or more advanced technologies.”

That leaves a bit of a grey area as far as what 23andMe has the ability to keep, and how they can use your DNA information. If your spit or DNA sample is stored, the company can hold onto it for between one and 10 years, “unless we notify you otherwise,” the Biobanking Consent Document states.

Still, you can request that the company discard your spit. To do so, go to its Customer Care page, navigate to “Accounts and Registration,” scroll to the bottom of the bulleted list of options, and select the last bullet titled “Requesting Account Closure.”

Once there, you must submit a request to have your spit sample destroyed and/or have your account closed.

Deleting DNA Test Results from Ancestry.

If you want to delete your DNA test results with Ancestry, use the navigation bar at the top of the homepage to select “DNA.”

On the page with your name at the top, scroll to the upper right corner, select “Settings,” then go to “Delete Test Results” on the right side column.

According to the company’s latest privacy statement, doing this will result in the company deleting the following within 30 days: “All genetic information, including any derivative genetic information (ethnicity estimates, genetic relative matches, etc.) from our production, development, analytics, and research systems.”

But if you opted into Ancestry’s informed “Consent to Research” when you signed up, the company says it can’t wipe your genetic information from any “active or completed research projects.” It will, however, prevent your DNA from being used for new research.

To have the company discard your spit sample, you must call Member Services and request that it be thrown out.

Deleting DNA Test Results From Helix.

In its most recently updated Privacy Policy, Helix states that it may “store your DNA indefinitely.” It also keeps your saliva sample, but you can request that it be destroyed by contacting Helix’s Customer Care via a request form that looks similar to 23andMe’s.

My opinion? Thankfully, the police conducted lawful and highly intelligent investigations leading up to the capture of the Golden State Killer. They should be congratulated. And these highly remarkable techniques remind us that the information we share with the world can be accessed anywhere, any time, by the authorities. Like Brodwin mentions,  companies can and do sell your data to third parties like pharmaceutical companies. From there, it could find its way elsewhere.

Please contact my office if you, a friend or family member face criminal charges involving the authorities accessing DNA. If the search was unlawful, then the evidence can be suppressed. Hiring a competent defense counsel who is familiar with search and seizure  law is the first and best step toward getting criminal charges reduced or dismissed.

Studies Show Immigration Does Not Increase Violent Crimes

Bellingham Defense Attorney, Immigration, Skagit County Criminal Defense, Studies, Violent Crime, Whatcom County Criminal Defense, , , , ,

Image result for immigration violent crime

Informative article from John Burnett of NPR discusses four academic studies showing that illegal immigration does not increase the prevalence of violent crime or drug and alcohol problems.

Michael Light, a criminologist at the University of Wisconsin, looked at whether the soaring increase in illegal immigration over the last three decades caused a commensurate jump in violent crimes: murder, rape, robbery and aggravated assault.

“Increased undocumented immigration since 1990 has not increased violent crime over that same time period,” Light said in a phone interview.

Those findings are published in the current edition of the peer-reviewed journal Criminology.

In a separate study, these same researchers previously looked at nonviolent crime. They found that the dramatic influx of undocumented immigrants, similarly, did not drive up rates of drug and alcohol arrests or the number of drug overdoses and DUI deaths.

“We found no evidence that undocumented immigration increases the prevalence of any of those outcomes,” Light said.

A third study, by the libertarian Cato Institute, recently looked at criminality among undocumented immigrants just in Texas. The state records the immigration status of arrestees, creating a gold mine for criminologists.

Cato found that in 2015, criminal conviction and arrest rates in Texas for undocumented immigrants were lower than those of native-born Americans for murder, sexual assault and larceny.

Finally, a research paper appearing in the current edition of the U.K. journal Migration Letters shows that youthful undocumented immigrants engage in less crime than do legal immigrants or U.S.-born peers.

According to reporter Burnett, social science has focused on the extent of crime committed by legal immigrants for decades. These new studies are important because they’re among the first to explore the link between crime and illegal immigration.

However, Burnett also indicates that the new research may not move the needle in the immigration debate. Texas Republicans, for instance, have potent opinions about undocumented immigrants. A recent poll showed that 7 out of 10 GOP voters in Texas support the proposition that all undocumented immigrants should be deported immediately regardless of whether they have committed a crime there.

My opinion? Immigration certainly is a hot-button political issue. Hopefully, the research is exposing some critical truths which may shed light on the issues and change the narrative.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Felony Harassment (DV)

Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, felony, Harassment, Right to Present A Defense, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for toxic relationship

In State v. Horn, the WA Court of Appeals held that the trial court’s refusal to admit evidence of the defendant’s and the victim’s engagement and trip taken after the date of a domestic violence offense did not violate the defendant’s Sixth Amendment rights.

BACKGROUND FACTS

Horn and Ms. Oubre became romantically involved while Oubre was estranged from another man with whom she had had a relationship. Horn and Oubre began openly dating in January 2015.

In January 2015, Horn and Oubre were at Oubre’s residence drinking alcoholic beverages. While Oubre was using her cellphone, Horn grew angry and accused her of texting the man with whom she had been involved. According to Oubre, she had never seen him have “an episode like this before.” Horn grabbed Oubre’s night shirt and ripped it open, hitting her on the chest in the process.

Scared that the downstairs neighbor would hear the scuffle, Oubre and Horn went to Horn’s home. Once they arrived and got out of the car, Oubre told Horn that she was going to leave, but Horn grabbed her. They began wrestling when Horn pushed her against a wall and down into a flower bed. He bit her multiple times. Oubre did not call the police.

On August 7, 2015, Horn and Oubre were together at her home. Oubre was on her cell phone playing a game. Horn grew aggressive, believing that Oubre was texting an ex-boyfriend. A violent exchange occurred between Horn and Oubre. Horn straddled Oubre on the bed, pointed a gun at himself and Oubre, and gave numerous threats against her life.

Later, Oubre went to the hospital. She spoke with the police while at the hospital, and Horn was then arrested. Among other offenses, Horn was charged with Felony Harassment (DV) based on the August incident. Horn posted bail on August 20, 2015.

Oubre and Horn got engaged on September 5 and took a trip together.

Horn was later charged with violating a no-contact order, to which he pled guilty. As part of the events related to that charge, videotape evidence showed Horn naked while jumping on top of Oubre’s car.

Before trial on the felony harassment charge, the State sought to introduce evidence of
the January 2015 incident under ER 404(b) to show that Horn’s threat to kill Oubre in August 2015 placed her in reasonable fear that the threat would be carried out. One of the elements of felony harassment is that the victim be placed in reasonable fear that a threat will be carried out.

Before trial, both the State and defense counsel argued over whether the evidence of the January 2015 incident should be admitted. The defense objected and in the alternative argued that if the State was permitted to introduce this evidence, the defense should be able to introduce evidence of Oubre and Horn’s engagement and trip after August 2015. In the defense’s view, this evidence showed that Oubre did not have a reasonable fear that Horn would carry out his threat to kill her on August 7.

The State opposed the admission of evidence of their engagement and trip because “it triggers a bunch of things,” including Horn’s later violation of a no-contact order where he was naked and jumping on top of Oubre’s vehicle. The State also did not believe the evidence was relevant to whether Oubre was fearful in August 2015.

The jury found Horn guilty of two counts of fourth degree assault, unlawful possession of
a firearm, and domestic violence felony harassment. Horn appealed. He argued that his Sixth Amendment right to present his defense was violated because the trial court did not admit evidence of Oubre and Horn’s engagement and trip taken after the August 2015 incident.

COURT’S ANALYSIS & CONCLUSIONS

“We review a Sixth Amendment right to present a defense claim under a three-step test,” said the Court of Appeals. First, the evidence that a defendant desires to introduce must be of at least minimal relevance. A defendant only has a right to present evidence that is relevant. Second, if relevant, the burden shifts to the State to show that the relevant evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial. Third, the State’s interest in excluding prejudicial evidence must also be balanced against the defendant’s need for the information sought, and relevant information can be withheld only if the State’s interest outweighs the defendant’s need.

The Court reasoned that to show a violation of the right to present a defense, the excluded evidence, that of Horn and Oubre’s engagement and trip, must first be of at least minimal relevance. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The threshold to admit relevant evidence is very low.

Impeachment evidence is relevant if: (1) it tends to cast doubt on the credibility of the person being impeached and (2) the credibility of the person being impeached is a fact of consequence to the action.

The court reasoned that here, Oubre’s subsequent engagement and trip with Horn thus would be relevant, if at all, to impeach her testimony that she feared Horn at the time he threatened to kill her.

“With the frightening nature of the threats and violence against Oubre on August 7 and the passage of nearly a month until their engagement, Oubre’s change of heart casts little doubt on her testimony that on August 7, in the face of repeated violence and death threats, she feared for her life.”

The court said that for these reasons, especially in combination with the cycles of violence and reconciliation in domestic violence relationahips, the evidence of Oubre’s engagement to and trip with Horn was not relevant.

“The trial court’s exclusion of that evidence was neither manifestly unreasonable, based on untenable grounds, nor based on untenable reasons,” said the Court of Appeals. “Thus, under the abuse of discretion standard, the exclusion of this evidence did not deprive Horn of his right to present a defense.” Furthermore, because Horn does not meet the first requirement of the three-step test, his claim that the trial court deprived him of the right to present a defense fails.

With that, the Court of Appeals ruled that Horn’s right to present a defense was not violated. Therefore, his convictions were affirmed.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

DUI For Left-Lane Travel

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, DUI, marijuana, misdemeanor, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Wrong Way Accidents: Why They Happen & How To Avoid Them

In State v. Thibert, the WA Court of Appeals upheld the DUI conviction of a motorist who was pulled over for the traffic infraction of travelling in the far-left lane of the freeway.

BACKGROUND FACTS

Deputy Justin Gerry was on routine patrol one morning in July 2013 on westbound Interstate 82 in Benton County. He observed a silver Chevrolet Impala in the left lane pass a vehicle in the right lane, traveling faster than the posted 70 miles per hour speed limit. The Impala continued to travel in the left lane long after passing the vehicle in the right lane, even though no other vehicles were traveling in the unobstructed right lane. The deputy initiated a traffic stop not for the car’s speed, but for a violation of RCW 46.61.100(2), captioned “Keep right except when passing, etc.”

On approaching the vehicle, which was being driven by Mr. Thibert, Deputy Gerry smelled the odor of fresh marijuana. What looked like a smoking device was hanging from Mr. Thibert’s neck. Mr. Thibert told the deputy he was a medical marijuana patient and used the smoking device to smoke marijuana oil. Deputy Gerry noted that Mr. Thibert had difficulty finishing his sentences and that he “would sometimes stop speaking and just giggle.”

Mr. Thibert agreed to perform field sobriety tests. Based on Mr. Thibert’s performance, Deputy Gerry concluded he was under the influence of marijuana and could not safely operate a motor vehicle. He placed Mr. Thibert under arrest and transported him to the hospital for a blood draw. THC was present in Mr. Thibert’s blood at 55 nanograms. He was charged with driving a motor vehicle while under the influence of marijuana.

Mr. Thibert moved on multiple grounds to suppress evidence obtained as a result of the traffic stop and events that followed. The district court denied the motion. It found among other facts that Mr. Thibert’s “remaining in the left lane, when one could lawfully and safely return to the right lane, is an infraction and provided Deputy Gerry probable cause to stop.” The parties agreed to submit the case to the court for a determination of guilt on stipulated facts. The district court found Mr. Thibert guilty.

Mr. Thibert appealed to the Benton County Superior Court, which affirmed the judgment, dismissed the appeal, and remanded the matter to the district court for sentencing.

Afterward, Mr. Thibert appealed his case to the WA Court of Appeals on the issue of whether Mr. Thibert was stopped unlawfully because the fact that he drove in the left lane, without impeding traffic, did not establish reasonable suspicion for the stop.

COURT’S ANALYSIS & CONCLUSIONS

“At issue is whether RCW 46.61.100(2), on which Deputy Gerry relied in stopping Mr. Thibert, creates a traffic infraction,” said the Court of Appeals.

The WA Court of Appeals said that a reasonable articulable suspicion of a traffic infraction, like a reasonable articulable suspicion of criminal activity, will support a warrantless traffic stop under article I, section 7 of the Washington Constitution. Subsection (2) of RCW 46.61.100, which Mr. Williams contends addresses only the “primary use” of the left lane of a multi-lane highway, states:

“Upon all roadways having two or more lanes for traffic moving in the same direction, all vehicles shall be driven in the right-hand lane then available for traffic, except (a) when overtaking and passing another vehicle proceeding in the same direction, (b) when traveling at a speed greater than the traffic flow, (c) when moving left to allow traffic to merge, or (d) when preparing for a left turn at an intersection, exit, or into a private road or driveway when such left turn is legally permitted.”

Plainly read, RCW 46.63.020 and 46.61.100 make it a traffic infraction to travel in the left lane in the four circumstances identified by RCW 46.61.100(2). The word “shall” in subsection (2) (“all vehicles shall be driven in the right-hand lane then available for traffic, except . . .”) “is presumptively imperative and operates to create a duty.”

Subsection (4), which he contends identifies the only infraction arising from
driving in the left lane, provides: “It is a traffic infraction to drive continuously in the left lane of a multi-lane roadway when it impedes the flow of other traffic.”

The Court further reasoned that, plainly read, RCW 46.63.020 and 46.61.100 make it a traffic infraction to travel in the left lane in the four circumstances identified by RCW 46.61.100(2). The word “shall” in subsection (2) (“all vehicles shall be driven in the right-hand lane then available for traffic, except . . .”) “is presumptively imperative and operates to create a duty.”

The Court disagreed with Mr. Thibert’s contention that if each of subsections (2) and (4) of RCW 46.61.100 identify traffic infractions, then they are irreconcilable or cancel each other out.

“The subsections are reconcilable,” said the Court. “An individual is permitted to drive in the left lane when one of the transient exceptions identified in subsection (2) applies, unless the transient exceptions arise so frequently that the individual’s continuing travel in the left lane is impeding traffic.” Also, because the conduct that was forbidden by the statute can be understood by ordinary people, the Court of Appeals rejected Mr. Thibert’s passing argument that the statute is void for vagueness.

With that, the Court of Appeals upheld Mr. Thibert’s conviction.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Warrantless Search & “Community Caretaking”

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, felony, Firearm, Fourth Amendment, Homicide & Manslaughter, law enforcement, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Know Your Rights: Can You Be Searched Without a Warrant? | legalzoom.com

In State v. Boisselle, the WA Court of Appeals held that the officers’ warrantless entry into a duplex was lawful as the officers were worried that someone might be injured or dead inside, the officers were unable to locate the individuals who were believed to being living in the duplex, the officers did not intend to conduct a criminal investigation inside the duplex, and from the time the officers arrived at the duplex, until entry, the officers individually and collectively worked to ascertain the situation.

BACKGROUND FACTS

In July 2014, Michael Boisselle encountered Brandon Zomalt, an old acquaintance. Zomalt told Boisselle that he was homeless, had nowhere to sleep, and that he needed assistance obtaining a food handler’s permit in order to secure a job. Boisselle offered to let Zomalt stay with him in his duplex unit. With Boisselle’s assistance, Zomalt received his food handler’s permit and began working at a nearby restaurant. However, Zomalt was fired after one week for fighting at work.

Zomalt was addicted to alcohol and methamphetamine. He also had a history of violence. Several people, including Zomalt’s mother and two of his former girlfriends, had been granted protection orders against him. After losing his job, Zomalt drank throughout the day. Boisselle did not feel safe around Zomalt and avoided him when possible.

The tension in the house culminated into a confrontation. Apparently, Zomalt began to behave strangely. He also drank heavily. One night, Boiselle and Zomalt were home. According to Boiselle, Zomalt held him hostage in their home and threatened Boiselle with a firearm. Later that night, Boiselle managed to reach the gun. He fired the weapon at Boiselle, apparently in self-defense. No witnesses summoned police or heard the firearm.

On September 1, 2014, South Sound 911 dispatch received an anonymous telephone call from an individual who reported that “somebody by the name of Mike” stated that he shot someone at the duplex. Shortly thereafter, the Puyallup Police Department anonymous tip line received a telephone call from an individual who reported that “Mike” had “shot someone” and “possibly killed him, and it was in self-defense.” Deputies Ryan Olivarez and Fredrick Wiggins were dispatched to the scene.

Olivarez and Wiggins knocked on the door of the duplex but received no response. There was, however, a dog inside that was barking aggressively. The deputies walked around the outside of the duplex and attempted to look inside, but all of the windows were closed and covered with blinds. There was a light on in the upstairs western bedroom. The deputies smelled a foul odor coming from the house and the garage. Olivarez thought that “something about it just seemed off’ and was concerned with “trying to figure out if someone needed help.” Olivarez and Wiggins then contacted the neighbors in order to gather more information. Two neighbors informed the deputies that they had not seen anyone coming or going from the duplex for about “four or five days.”

With no person apparently able to consent to a police entry of the unit and believing that they did not have a sufficient basis to obtain a search warrant, Adamson and Clarkson made a joint decision to force entry into the duplex. Clarkson broke through the front door. An animal control officer secured the dog. The officers then performed a security sweep of the duplex, looking for anyone who was hurt. Adamson and Clarkson searched the second floor of the duplex while Wiggins and Olivarez searched the first floor. The officers checked all of the rooms, looking in closets and other large spaces for a person or a body but ignoring drawers and other areas where a person could not fit.

Sergeant Clarkson believed that the smell was coming from inside of the garage and was consistent with a dead body. Once all of the rooms inside the duplex had been checked, deputies Wiggins and Olivarez forced entry into the garage from inside of the duplex. Once inside the garage, all four officers could see a large, rolled up carpet with a shoe sticking out and maggots pouring out of the bottom. Sergeant Clarkson opened the garage door using the automatic door opener and all four officers went around to the outside of the garage for a clear view of the carpet. From outside of the house, the officers saw an arm hanging out of the front end of the carpet. Clarkson told the other officers that “this is a crime scene now,” and that “it’s time we have to seal this off.” None of the officers collected evidence or touched the carpet.

Boisselle was charged with second degree murder and unlawful possession of a firearm. Before trial, he argued a CrR 3.6 motion to suppress. The judge denied the motion. At trial he was convicted of both charges.

On appeal, and among other issues Boisselle contends that the trial court erred by denying his motion to suppress the search of his home.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the United States Constitution prohibits unreasonable searches and seizures. “The Fourth Amendment does not prohibit ‘reasonable’ warrantless searches and seizures,” said the Court. Furthermore, the Court said the analysis under the Fourth Amendment focuses on whether the police have acted reasonably under the circumstances.

Additionally, the Court explained that Article 1, section 7 of the Washington Constitution is more protective than the Fourth Amendment, particularly where warrantless searches are concerned. “Article 1, section 7 provides that ‘no person shall be disturbed in his private affairs, or his home invaded, without authority of law,'” said the Court.  The WA Constitution also prohibits any disturbance of an individual’s private affairs without authority of law. The Court said this language prohibits unreasonable searches.

However, the Court also explained that a search conducted pursuant to a police officer’s community caretaking function is one exception to the warrant requirement; and the community caretaking function was first announced by the United States Supreme Court in Cady v. Dombrowski. From there, subsequent Washington cases have expanded the community caretaking function exception to encompass not only the search and seizure of automobiles, but also situations involving either emergency aid or routine checks on health and safety.

Here, the court reasoned the police officers rightfully conducted a community caretaking search under the circumstances:

“In any event, the record establishes that the officers acted promptly given the circumstances. From the moment they arrived at the duplex, until entry, the officers individually and collectively began to ascertain the situation at hand. This included checking doors and windows to determine whether anyone was inside the duplex, contacting both the owner of the duplex and the individual listed on the lease in attempts to obtain consent to enter, questioning neighbors, and contacting animal control.”

The Court emphasized that, ultimately, the officers reached a point where two things were clear: (1) obtaining consent to enter was not possible as no person entitled to consent could be identified, and (2) there was nothing further the officers could do to discern the welfare of any person inside the unit absent entry. “At this point, the officers reasonably concluded that forcible entry was necessary to determine the need for and to render assistance. Given the circumstances, this was an immediate response to a likely emergency,” said the Court.

Finally, the Court reasoned the officers’ warrantless search of the duplex was justified pursuant to the community caretaking function exception as considered by a majority of the Supreme Court in State v. Smith.

“Accordingly, the trial court did not err by denying Boisselle’s motion to suppress,” said the Court of Appeals. With that – and following discussion of other issues – the Court of Appeals affirmed Mr. Boisselle’s conviction.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Jail Mail

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Jail, Prison, Search and Seizure, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Amazon.com: Jail Mail: Appstore for Android

In State v. Irby, the WA Court of Appeals held that an inmate’s 6th Amendment rights were violated and has case was prejudiced when jail guards opened and read his confidential “jail mail” letters written to his defense attorney.

BACKGROUND FACTS

In April 2005, Irby was charged with one count of burglary in the second degree, alleged to have occurred on March 6, 2005, and the following counts alleged to have occurred on March 8, 2005: one count of aggravated murder in the first degree with an alternative allegation of first degree felony murder, one count of burglary in the first degree, one count of robbery in the first degree, three counts of unlawful possession of a firearm in the first degree, and one count of attempting to elude a police vehicle. The latter charges arose out of a robbery and bludgeoning death.

In January 2007, a jury found Irby guilty of murder in the first degree with aggravating circumstances, felony murder in the first degree, and burglary in the first degree. Four years later, the Washington Supreme Court reversed the judgment of conviction and remanded the cause for a new trial in light of the court’s determination that Irby’s due process rights had been violated during jury selection. See State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011).

Irby’s retrial was held in 2013. The State prosecuted the same charges that were brought during the first trial and Irby was convicted as charged. Notably, at the retrial, Irby was allowed to proceed pro se. He also voluntarily absented himself from the trial. We subsequently reversed the judgment of conviction and remanded the cause for yet another new trial because the trial judge had erroneously seated a juror who had demonstrated actual bias against Irby during voir dire.

In March 2016, pretrial proceedings began for Irby’s third trial. He was represented by a public defender. In mid-March, the State filed an amended information charging Irby with one count of premeditated murder in the first degree and one count of burglary in the first degree. Two days later, Irby appeared in court and was arraigned on the charges. He entered pleas of not guilty.

In mid-March and again in late March, Irby requested to represent himself. Following a colloquy with the trial court in mid-April, Irby’s request was granted. Four months later, Irby filed a pro se motion to dismiss the charges against him. In his motion, Irby alleged misconduct by jail guards, claiming that (during the period of time during which his public defender represented him) they had improperly opened outgoing mail containing privileged legal communication intended for his attorney.

The trial court denied Irby’s motion. The trial court did determine that the jail guards had violated Irby’s right to counsel by opening and reading privileged attorney-client communications. Although Irby argued that the trial court’s determination mandated that a presumption of prejudice be imposed, the trial court placed on Irby the burden of proving prejudice and concluded that he did not do so.

One month later, Irby informed the trial court that he had decided not to attend the trial and waived his right to be present at trial.

After a jury was selected without Irby’s participation, the evidentiary stage of Irby’s third trial began. Irby did not attend the trial. The State presented its case in chief and gave closing argument. No defense or closing argument were presented on Irby’s behalf.

The jury returned verdicts finding Irby guilty as charged. Irby was sentenced to concurrent terms of incarceration of 388 months for the murder in the first degree conviction and 54 months for the burglary in the first degree conviction.

ISSUES

1. Did a State actor participate in the infringing conduct alleged by the defendant?

2. If so, did the State actor(s) infringe upon a Sixth Amendment right of the defendant?

3. If so, was there prejudice to the defendant? That is, did the State fail to overcome the presumption of prejudice arising from the infringement by not proving the absence of prejudice beyond a reasonable doubt?

4. If so, what is the appropriate remedy to select and apply, considering the totality of the circumstances present, including the degree of prejudice to the defendant’s right to a fair trial and the degree of nefariousness of the conduct by the State actor(s)?

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals decided  the “State actors” engaged in misconduct.

“Irby’s motion to dismiss alleged that the confrontation between himself and the State involved conduct by jail guards employed by the county jail in which he was being housed,” said the Court of Appeals. “Thus, Irby established that the conduct underlying his claim involved State actors.”

Second, the Court decided  that the jail guards’ conduct infringed upon his Sixth Amendment right.

“Plainly, a defendant’s Sixth Amendment right to assistance of counsel is violated when the State intrudes into a privileged attorney-client communication,” said the Court of Appeals.

The court reasoned that here, Irby’s motion to dismiss—and accompanying exhibits and addendum—alleged that he had sent 14 pieces of confidential correspondence containing privileged information to his attorney that, he argued, had been improperly opened and read by jail guards in the Skagit County Jail. The correspondence constituted Irby’s handwritten statements on both a “Public Defender Request Form” and jail kites—multi-purpose request forms available to inmates in the Skagit County Jail.

Prior to sending the correspondence, Irby folded each piece of paper in half, sealed each piece of paper with tape, and written on the outward facing side, “CONFIDENTIAL,” and “ATTORNEY BOX.” Consequently, the Court of Appeals said the folded and taped pieces of paper were intended to be confidential and included privileged attorney-client information. “Thus, the aforementioned correspondence from Irby to his counsel contained privileged attorney-client information protected by the Sixth Amendment.”

Third, the Court of Appeals held that the  jail guards’ opening and reading of Irby’s privileged attorney-client correspondence infringed upon his Sixth Amendment right to counsel. The parties do not dispute the trial court’s finding that jail guards had opened and read Irby’s privileged attorney-client communications. “Thus, the jail guards—and therefore the State—infringed on Irby’s Sixth Amendment right to counsel. This constitutes misconduct, within the meaning of CrR 8.3.”

Finally, the Court of Appeals decided Irby was prejudiced by the misconduct:

“More than half a century ago, our Supreme Court ruled that, when State actors pry into a defendant’s privileged attorney-client communications, prejudice to the defendant must be presumed . . . We must assume that information gained by the sheriff was transmitted to the prosecutor and therefore there is no way to isolate the prejudice resulting from an eavesdropping activity, such as this.”

The Court of Appeals further reasoned that recently, our Supreme Court in Pena Fuentes reaffirmed this ruling and, in light of a State actor’s eavesdropping on privileged attorney-client communications, imposed a presumption of prejudice.

Furthermore, because the State actors here at issue—jail guards—infringed upon Irby’s Sixth Amendment right, prejudice must be presumed. Thus, the trial court erred by not imposing a presumption of prejudice after it determined that the jail guards had opened and read Irby’s communications containing privileged attorney-client information.

With that, the Court of Appeals reversed the order denying Irby’s motion to dismiss and remanded this matter for an evidentiary hearing with instructions to the trial court.

My opinion? Excellent decision by the Court of Appeals. It most certainly violates a defendant’s constitutional rights for state actors like jailers, law enforcement and Prosecutors to read mail from an inmate intended for an attorney.

Please read my Legal Guide titled Making Bail and contact my office if you, a friend or family member face criminal charges and are incarcerated awaiting trial. Being in jail is never wise if it can be avoided. Chances are, a qualified and competent attorney can argue for personal release, lowered bail or convince the judge to release the defendant to a family member who is willing to supervise the defendant’s whereabouts.

DV & Cohabitating Parties

Assault, Bellingham Defense Attorney, Child Abuse, Domestic Violence, Evidence, felony, Harassment, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Image result for dv and parents with kids

In State v. Shelley, the WA Court of Appeals reversed the the defendant’s domestic violence convictions and held that a man, who is cohabitating with a woman and her child, does not necessarily have a “family or household” relationship to the child.

BACKGROUND FACTS

From late 2013 until April 2015, Defendant Aaron Shelley, his girlfriend Cheri Burgess, and her son from another relationship, A.S., lived with Shelley’s aunt and uncle.

On the evening of April 29, 2015, Shelley became angry and wanted Burgess to leave the house. After attempting to force Burgess out of the house, Shelley placed a knife against Burgess’s throat and stated he was going to kill her because she was not leaving. Shelley’s uncle, Mr. Sovey, intervened and convinced Shelley to give him the knife.

While Burgess and Sovey were talking in the kitchen, Shelley took A.S. out to the car. When Burgess confronted Shelley, Shelley grabbed A.S. by the throat. A.S. made a choking noise, “like he couldn’t breathe.” And when Burgess tried to grab A.S., Shelley said, “If you don’t leave or get away, I’m just gonna squeeze him, keep squeezing him. Get away from me. Leave, leave. Just effing leave. Leave my boy.” After Sovey came outside, Burgess walked away and called the police.

The State charged Shelley with, among other things, two counts of second degree assault as to Burgess, one count of second degree assault of a child as to A.S., and one count of felony harassment for threatening to kill A.S. The State alleged each crime was one of domestic violence.

The jury convicted Shelley of one count of assault as to Burgess. The jury found this was a crime of domestic violence because Shelley and Burgess were members of the same family or household. The jury also convicted Shelley of one count of assault as to A.S. and one count of felony harassment.

Shelley appealed on the issue of whether he was properly convicted of domestic violence acts against A.S.

COURT’S ANALYSIS AND CONCLUSIONS

The WA Court of Appeals reasoned that under RCW 10.99.020(3) and RCW 26.50.010(6), “family or household members” includes the following:

“Spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.”

“The State had the burden of establishing Shelley and A.S. had a biological or
legal parent-child relationship,” said the Court. “It is undisputed that Shelley is not A.S.’s biological father because Shelley and Burgess did not meet until she was six months
pregnant.”

The Court also raised and dismissed the State’s arguments that Shelley’s presumption of parentage was proven under RCW 26.26.116 of the Uniform Parentage Act. “The State did not present the trial court with any evidence of such a judicial determination,” said the Court of Appeals. “On this record, the State’s presumptive parent and de facto parent
theories fail.”

The Court concluded that because A.S. and Shelley are not family or household members, the domestic violence special verdicts on count 3, second-degree assault of a child, and count 4, felony harassment, were invalid as a matter of law.

Please contact my office if you, a friend or family member are charged with DV crimes involving the children of unmarried boyfriends/girlfriends or domestic partners.  Like this case shows, the Prosecution may be unlawfully charging defendants with DV crimes when it lacks the authority to do so.